I wanted to pick up on a few points I left open the day before yesterday. (The news from the UK interrupted me. Go back to the original post on this case to read a summary of the facts and the ruling. The opinion itself is here.)
The court suggests that it is important that Margaret did not adopt or try to adopt Maya. I don’t know whether the court means to suggest that Margaret is in some way at fault here (and that losing contact with Maya is a reasonable sanction for that fault) or that Margaret’s failure to adopt demonstrates her lack of commitment. Either way I find the reasoning troubling.
Of course it would be easier if Margaret had adopted Maya. An adoptive parent is a legal parent (as the court recognizes with respect to Janice) and so there is no need to get to all these messy arguments. But this doesn’t tell us about what importance should be attributed to the fact that she did not try to adopt Maya.
As the court actually notes in footnote 3, it isn’t at all clear that a same-sex couple can adopt in Maryland. So it’s not as though Margaret declined to follow some well-established rule here. But even if she had failed to adopt the child when it was clear that she could have, shouldn’t we care about why she didn’t try to adopt before we give that action some weight?
It’s possible that she didn’t adopt because she did not wish to have the responsibility of a legal parent. If that were the case, then it would be an important factor to consider in determining her claim to parental rights. But it is also possible that she didn’t adopt for reasons that have nothing to do with her commitment to a parental role. Suppose Janice had provided all sorts of assurances that they didn’t need to spend all the time, energy and money pursuing yet another adoption because she (Janice) would always recognize Margaret’s parental claim?
I have no idea about whether either of the scenarios discuss above has a shred of truth here. The point is that the court doesn’t care about details like this. It simply logs the “did not try to adopt” fact into the “weighs against Margaret” category.
Imagine this scenario–two women (A and B) want to adopt a child from India. They know that, under Indian law, only one of the can adopt initially. They flip a coin and as a result, A adopts initially. Once the child is in their household, they share the work of caring for the child. (Or maybe we should really stack the deck, and say that B does the vast majority of child-care work.) They don’t get around to or are not permitted that second-parent adoption. And then they split up and A asserts that B is not a parent and has no rights.
It’s clear that under Maryland law, A wins every time. No matter what the division of labor. No matter what the reality of the child’s life. The result is dictated by the fact that A won the coin toss and did the original paperwork and B did not. Now, if you think about this from the point of view of the child, does that make any sense at all?
You can see I’ve got a bit of a bee in my bonnet about this. I hate that the failure to adopt, by itself, without any consideration of circumstances, is held against a woman (or a man) who has fully embraced the role of parent in every real way. (You can read a much more academic and lengthy discussion of this here. You’ll have to register, but it is free.)
That’s it for today. I can see I’ll be returning to this problem again soon–more to say.
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Julie –
As you have pointed out so wisely before, failure to exercise the right to second parent adoption can backfire on an unsuspecting or unsophisticated non-bio mom or even an intact family that is facing a crisis and ends up with some type of outside intervention.
Having won the right to have both moms names on a birth certificate in NJ has the potential for a similar calamity. If the family does not follow through with an adoption and then migrates to a less friendly state, the non-bio mom could face trouble if her sole claim to parentage is a birth certificate based on a NJ civil union.
Bill
If Margaret had tried and failed to adopt Maya I would feel differently. That would show that Margaret and Janice wanted and planned to parent together. I live in VA where same-sex couples have no rights yet my expartner and I obviously planned to parent together – baby’s name and both of ours were legally hyphenated and his first name is the same as my ex-partner’s dad. Our son calls her momma and me, mommie. Before the reversal of de facto parent any same-sex room mate could claim a partnership and planned parenthood, a child could have 10 de facto parents. How does that work for the child.
Julie, You have done a whole lot of “speculating” about what Margaret and Janice did or didn’t do regarding Maya. Speculating means nothing. You don’t know these people but I do. In this case I think what matters most is what the child feels. And this child NEVER thought of Margaret as a parent. In fact since the visits stopped in May she is like a different child. She is so much more happy and relaxed. It will take a long time to undo the damage done to her by this case but she is progressing well.
Susie is completely right to point out that all I am doing is speculating. The same can be said for every case discussion here. I do not know the people and I do not know the real facts.
I’m trying to use the cases in two ways. One is simply to highlight the law that is being made by judges throughout the country. But beyond that I want to use the cases as jumping off points to think about broader issues that concern me. The court holds it against Margaret that she did not try to adopt the child. But there are many reasons why a person might not try to adopt a child. For example, I might not understand the importance of adopting, I might think my rights are already secure, I might be lulled into that belief by advice from other people. I do not contend for a minute that any of these things actually happened in this case because, as Susie rightly points out, I don’t know. But the court’s statement in this case is general. It isn’t really narrowed by whatever the specific facts of this case are. Thus, it would be equally applicable in a case where a woman chose not to adopt because her partner (and let’s just make that partner a lawyer) assured her there was no need for her to do so. If those were the facts (and I want to stress IF, because I’m just thinking hypothetically) then I am not convinced it would be right for a court to hold it against this hypothetical woman that she did not adopt.
In other words I want to say both that Susie is quite right about my speculating but also that the speculation has value. It just should be clearly understood to not be commentary on the particular individuals involved and instead, commentary on the court’s work.
Can a court really know and render a decision based on a person’s supposed motivations? What is not verifiable is not relevant to the decision.